Public Interest Disclosure Act 1998 (s.43G - section 11)

An Act to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes.

[2nd July 1998]

Section 43G ERADisclosure in other cases

43G.(1) A qualifying disclosure is made in accordance with this section if-(a) the worker makes the disclosure in good faith, [this subsection had been omitted by the Enterprise and Regulatory Reform Act 2013 and is not applicable to disclosures made on or after 25 June 2013](b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,(c) he does not make the disclosure for purposes of personal gain,(d) any of the conditions in subsection (2) is met, and(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2) The conditions referred to in subsection (1)(d) are-(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,(b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or(c) that the worker has previously made a disclosure of substantially the same information - (i) to his employer, or(ii) in accordance with section 43F.

(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to-(a) the identity of the person to whom the disclosure is made,(b) the seriousness of the relevant failure,(c) whether the relevant failure is continuing or is likely to occur in the future,(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,(e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and(f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

EXPLANATORY NOTE

This section sets out the circumstances in which other disclosures, including those to the media, may be protected. Such disclosures must meet three tests to be protected. The first of these (s.43G(1)(a)-(c)) deals with the evidence and motive of the whistleblower. The second (s.43G(2)) sets out three preconditions, one of which must be met if the disclosure is to be subject to protection. Finally, to be protected the disclosure must be reasonable in all the circumstances (s.43G(1)(e) and (3)).

Subs. (1)(a)Good faith - See comment on subsection 43C(1), supra.

Subs. (1)(b)reasonable belief - See comment on ss.43F and 43F(1)(b)(ii), supra. If the concern had been raised internally beforehand or with a prescribed regulator, the reasonableness of the worker's belief would be assessed having regard to any response he had received from management or the prescribed regulator.

Subs. (1)(c)personal gain - This provision - that the whistleblower will not be protected if the purpose of the disclosure was personal gain - is aimed primarily at cheque book journalism. It covers not only payments of money, but benefits in kind. It would also catch a situation where the benefit did not go directly to the worker but to a member of his family, provided that its purpose was personal gain. However, this provision does not cover any reward payable by or under any enactment (s.43L(2)), such as a payment made by Customs and Excise.

Subs. (1)(e)In all the circumstances of the case - In determining whether the disclosure was reasonable in all the circumstances, the tribunal will have regard to the factors in s.43G (3).

Subs. (2)The presumption is that, before any wider disclosure is protected, the concern will have been raised with the employer or with a prescribed regulator. This is reflected in three preconditions in this subsection, one of which must be met if a public disclosure under this section can be protected. These are that the worker reasonably believes he will be victimised; or that he reasonably believes there is likely to be a cover-up; or that the matter had previously been raised internally or with a prescribed regulator.

Subs. (2)(a)The first precondition is that the worker reasonably believes he will be victimised were he to raise the matter internally or with a prescribed regulator. See for example Everett v Miyano Care Services where the Applicant stated she had not raised her concern internally because she had not thought of telling her employers and that, had she thought of it, she would have done so as they had always been approachable. The belief must exist at the time he makes the external disclosure, it must be objectively reasonable, and it must be that he will be victimised (note, by contrast, in subs. 2(b) that the test is reasonable belief that there is likely to be a cover-up).

To reduce the risk that this precondition is easily satisfied, it is suggested that organisations should (a) establish, deliver and promote a whistleblowing procedure; (b) ensure that everyone knows victimisation is unacceptable; and (c) make it clear that going to a prescribed regulator is acceptable. It is also suggested that organisations review how they have handled any such matter in the recent past. This is because a worker is more likely to be able to satisfy this precondition if he can show, by reference to a previous whistleblowing incident, that the employer's conduct could reasonably be seen as victimisation.For those advising workers before any disclosure is made, it is important to note that - even though reasonable fear of victimisation may justify the protection of a wider disclosure - reporting to a prescribed regulator in such circumstances more readily secures protection for the client. However, where the worker has good reason to believe that, as a result of the unacceptably close relationship between the prescribed regulator and the employer, he will be victimised, a wider disclosure will be protected provided it is reasonable in the circumstances.

Subs. (2)(b)This precondition deals with circumstances where the worker reasonably believes a cover-up of the malpractice is likely to occur.

It can only be satisfied where there is no appropriate regulator prescribed under s.43F. Accordingly where there is a prescribed regulator, the Act suggests that a concern about a cover-up be raised with that regulator before any wider disclosure might be capable of protection (see subs. 2(c), below) unless the matter is exceptionally serious (s.43H).

Subs. (2)(c)This provides that wider disclosures may be protected where the matter has previously been raised internally or with a prescribed regulator. However, for such disclosures to be protected the tribunal must have particular regard to the reasonableness of the response of the employer or regulator (s.43G(3)(e)). It should be noted that the disclosure does not have to be of exactly the same information, provided it is substantially the same. In ALM Medical Services v Bladon the EAT - though overturned on other grounds - urged tribunals "to adopt a common-sense broad approach" to this question.

Subs (2)(c)(i)Where the concern had previously been raised with the employer, in determining whether the particular disclosure should be protected, the tribunal must have particular regard (s.43G(3)(f)) to whether the worker had complied with any whistleblowing procedure the organisation had.

Subs. (3)In deciding whether the disclosure was reasonable in all the circumstances, the tribunal should have particular regard to the issues set out in this subsection. Where the disclosure was of non-confidential information, it is submitted that this reasonableness test should be more readily satisfied. (Reference may be made to the Human Rights Act 1998 which, in the context of freedom of expression, distinguishes confidential from non-confidential information).

Where the information was confidential, it may be helpful to bear in mind the way the courts have weighed the same issue under the law of confidence. However, while the Act does not require that these are followed, it is submitted that tribunals should not apply this reasonableness test more restrictively than the courts permit disclosures of confidential information. This is because to be protected under this Act, the worker must meet certain criteria (good faith; some reliable evidence; and one of the preconditions in subs. (2) above) which do not apply to the decisions at common law. If the tribunal is satisfied that these criteria are met, the Act does no more than require the tribunal to consider whether the disclosure was reasonable in all the circumstances. The only explicit reference in the Act to any confidentiality in the information is where the confidences of a third party have been breached: s.43G(3)(d).

Subs. (3)(a)The range of people to whom such a disclosure might be made is potentially vast. It could include the police, a professional body, a non-prescribed regulator, a union official, an MP, the relatives of a patient at risk, a contracting party whose rights were being flouted, shareholders or the media.

In ALM Medical Services v Bladon the EAT - though overturned on other grounds - accepted that a disclosure of concerns about the care of residents to the Social Services Inspectorate (which was not prescribed under s.43F), made nine days after the matter had been raised internally, was reasonable.

As to the identity of the recipient, in Staples v Royal Sun Alliance an ET held it was reasonable to tell a customer of a breach in consumer law. As to media disclosures, tribunals have decided three cases, all involving the NHS. In Bright v Harrow & Hillingdon NHS Trust a disclosure to the press of a concern, that a nun who saw psychiatric patients while wearing her habit was a safety risk, was held to be unreasonable, the Applicant having asserted that it was for her, not her employer, to decide what was in the public interest. In Kay v Northumberland Healthcare NHS Trust a media disclosure was held reasonable where the Applicant wrote a satirical open letter to the Prime Minister in his local press about the shortage of beds for elderly patients. In Mounsey v Bradford NHS Trust it was held that it was reasonable for the Applicant to go on television to rebut criticisms of a colleague which she considered to be unfair.

On the basis that the identity of the recipient of the disclosure may be in contention between the parties, we also summarise the decisions where this issue has been considered in the courts under the law of confidence. In 1984 the Court of Appeal, in Francome v Daily Mirror [1984] 1WLR 892, held that the Daily Mirror could not publish confidential information which suggested that a jockey had been engaged in misconduct as the public interest would be just as well served by a disclosure to the police or the Jockey Club. This position was explained in Spycatcher no. 2, [1987] 3WLR p 776, (per Lord Griffiths p 794): "In certain circumstances the public interest may be better served by a limited form of publication perhaps to the police or some other authority who can follow up a suspicion that wrongdoing may lurk beneath the cloak of confidence. Those authorities will be under a duty not to abuse the confidential information and to use it only for the purpose of their inquiry."

As to cases where disclosures of confidential information to the media were justified, the following may be noted. In Initial Services v Putterill [1968] 1QB 396 a disclosure to the Daily Mail about price-fixing was held to be lawful by the Court of Appeal because the public were being misled. Similarly in Lion Laboratories v Evans [1984] 3 WLR 539 a case about suspect roadside breathalysers, the Court of Appeal held the press was an appropriate recipient of the information as it was important that people had the information needed to challenge criminal charges and it seemed that the Home Office - which had approved the breathalyser - was an interested party. In Cork v McVicar [1985] TLR 31/10/1985, the High Court allowed the Daily Express to publish allegations of corruption in the Metropolitan Police.

Subs. (3)(b)It is submitted that a lower level of seriousness would be expected where a disclosure of confidential information was made to the police or a non-prescribed regulator, than if the same information was disclosed to the media (see reference above to Spycatcher no. 2).

Subs. (3)(c)This provision implies it is more likely to be reasonable if the disclosure is about an on-going or future threat. This picks up a theme from the jurisprudence on the law of confidence (Weld-Blundell v Stephens [1919] 1 KB 520; Malone v Met Police [1979] 2WLR 700, p 716; Initial Services v Putterill [1968] 1QB 396, p 405; Schering Chemicals v Falkman [1981] 2WLR 848, p 869). Where the threat is passed, there needs to be a clear public interest in any confidential information being disclosed. In Spycatcher no 2 [1987] 3WLR p 776, Lord Griffiths (at p 804) said such a public interest might be to bring those responsible to account.

Subs. (3)(d)This provision was inserted at Committee in the Commons to ensure that tribunals took account of the interests of a third party about whom confidential information had been disclosed. In moving the amendment, the Minister explained (Parliamentary Debates HC, Standing Committee D, 11 March 1998, cols. 8 / 9) that it was to deal with information subject to a banker-client or doctor-patient confidence. In such cases, tribunals would - it is submitted - do well to have close regard to the decision that would be reached if the third party sued the employer for breach of confidence. At Report stage in the Commons, the Minister (Hansard HC 24 April 1998, col. 1137) stated that "it is certainly not the intention that, where a bank has acted diligently, it should be liable for a breach of confidence by a client when a bank employee has made a public interest disclosure."

Its effect is not that the disclosure of such information should not be protected, rather that it is material in determining the reasonableness of the particular disclosure. A helpful example of this is in W v Egdell [1990] 2 WLR 471, where the Court of Appeal held that it was lawful for a consultant psychiatrist to disclose information about an in-patient to the medical director at the patient's hospital, where the consultant genuinely believed that a decision to release the patient was based on inadequate information and posed a real risk of danger to the public. However the court held that the sale of his story to the media would not have been justified, nor would an article in an academic journal unless it had concealed the patient's identity.

Where the disclosure did breach a duty of confidence owed by an employer to a third party, in determining the reasonableness of the disclosure it will be important to assess the effect of the breach on the rights of the third party and, in particular, any unjustifiable damage it caused him (Mr Shepherd, Parliamentary Debates HC Standing Committee D, 11 March 1998, col. 9).

Subs. (3)(e)If the employer has investigated the concern and taken all reasonable action in respect of it but has left the whistleblower in ignorance of this, this may allow the worker to reasonably believe that no appropriate action was taken and to make a further disclosure. It is therefore desirable that the whistleblower is given feedback on, or is made aware of action taken as a result of, his concern and that this is provided within a reasonable period of time.

It is important to note that this section also applies where the concern has been raised with a prescribed regulator. As this has implications for employers, it is suggested that the organisation might sensibly request or instruct the prescribed regulator to communicate its findings to any whistleblower and to seek confirmation that this has been done.

Turning to the implications for prescribed regulators, this means that they too should be willing to consider providing the whistleblower with any appropriate feedback. If so, it would be sensible that they advise the organisation that they propose to do this. Insofar as the secrecy offences which govern parts of the work of prescribed regulators may inhibit the provision of such feedback, it should be noted that most such offences permit disclosures to be made with the consent of the person from whom the information has been obtained (and hence the employer can authorise the regulator to give feedback to the whistleblower). For these reasons, it is suggested that the prescribed regulator and the organisation should co-operate on how to ensure that reasonable feedback is made known to the whistleblower.

Subs. (3)(f)As to the key elements of a whistleblowing procedure, see the reference in the section entitled Overview in the Explanatory Note to this Act and also the comments on s.43A and 43C(2), supra. Under a grievance procedure it is for the worker to prove his case. Under a whistleblowing procedure, however, the worker raises the matter so that others may investigate it; it is not for the worker to prove the case or to dictate what the response should be from those in charge. One of the main benefits of such a procedure is that it helps workers and managers understand that a whistleblower is a witness rather than a complainant.

It will not be enough to introduce such a procedure in a workplace if reasonable steps are not also taken to promote it to the workforce: see Kay v Northumberland Healthcare NHS Trust. Ideally once such a procedure is introduced, its use should be monitored and its role should be highlighted to the workforce (routinely depending on the size of the organisation), for example through team briefings, newsletters or posters.

Subs. (4)This means that the worker will not lose protection if - in addition to disclosing the original concern - he comments on why he considers the initial response (be it of the employer or a prescribed regulator) was inadequate or unreasonable. See also the comment above on s.43G(2)(c) from the EAT decision ALM Medical Services v Bladon.

43H.(1) A qualifying disclosure is made in accordance with this section if-(a) the worker makes the disclosure in good faith, [this subsection had been omitted by the Enterprise and Regulatory Reform Act 2013 and is not applicable to disclosures made on or after 25 June 2013](b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,(c) he does not make the disclosure for purposes of personal gain,(d) the relevant failure is of an exceptionally serious nature, and(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.

EXPLANATORY NOTE

This section provides that other disclosures of exceptionally serious matters may be protected, even though they do not meet the conditions in the previous section.

Subs. (1)(d)This means that, if substantiated, the concern would be of an exceptionally serious nature.

Subs. (1)(e) and Subs. (2)When these provisions were inserted by a Government amendment (Parliamentary Debates HC, Standing Committee D, 11 March 1998), the Minister said "The Government firmly believe that where exceptionally serious matters are at stake, workers should not be deterred from raising them. It is important that they should do so, and that they should not be put off by concerns that a tribunal might hold that they should have delayed their disclosure or made it in some other way. That does not mean that people should be protected when they act wholly unreasonably: for example, by going straight to the press when there could clearly have been some other less damaging way to resolve matters".

It is submitted that a care worker genuinely concerned that a child was being sexually abused would be protected under this section if he went direct to the police. The EAT suggested a similar approach be adopted in ALM Medical Service v Bladon.

43J.(1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.

(2) This section applies to any agreement between a worker and his employer (whether a worker's contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.

EXPLANATORY NOTE

This provides that any clause or term in an agreement between a worker and his employer is void insofar as it purports to preclude the worker from making a protected disclosure. The agreement may be in an employment contract, in a contract of a worker who is not an employee or in any other agreement between a worker and employer. In particular it should be noted that it covers settlement or compromise agreements.

The section applies to 'gagging clauses' only insofar as they preclude a protected disclosure. In practical terms, their most significant effect will be in clauses in settlement agreements where the employer seeks to stop the worker from contacting a prescribed regulator under s.43F. This provision would apply with equal strength where a public body sought to stop workers contacting the sponsoring department under s.43E.

Where important issues are at stake and the employer is seeking an injunction to restrain the disclosure of confidential information, it is suggested that the key issue for the court will be the identity of the recipient of the disclosure. This is because under the common law, courts are most unlikely to restrain a worker disclosing confidential information to a regulator or to the police, even where it is unclear the worker is acting in good faith or with reliable evidence (see Note on s.43F, supra). Where the employer fears the worker will make a media disclosure, it will be open to the employer to seek an order or a declaration from the court that such a disclosure was not a protected one within this Act, even assuming the worker met the conditions in s.43G(1) and (2).

Insofar as media disclosures go, this section will (obviously) have no application where a media disclosure has already been made or where a tribunal's decision has been published that some other disclosure was protected. However, it might apply where a worker was dismissed in a particularly unpleasant way for making a protected disclosure to a prescribed regulator and where the employer, in settling the claim included a clause preventing the whistleblower from repeating his concern publicly. While employers and their advisers will recognise that such a clause can, even when lawful, be difficult to enforce in practice, the effect of this section is that it may not even be possible to enforce such a clause in law. This is because if the whistleblower did tell the media, the clause would be invalid if it was found this subsequent disclosure would have been PIDA protected.

The risk to (and in) such gagging clauses is particularly clear where the employer's response to a concern raised internally is to dismiss the whistleblower and to cover-up the malpractice. If there was no prescribed regulator, then there is a high chance that a clause in the settlement of the whistleblower's claim which sought to prevent him telling the media would be unenforceable.

Section 43K ERAExtension of meaning of "worker" etc. for Part IVA

43K.(1) For the purposes of this Part "worker" includes an individual who is not a worker as defined by section 230(3) but who-(a) works or worked for a person in circumstances in which -(i) he is or was introduced or supplied to do that work by a third person, and(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them,(b) contracts or contracted with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for "personally" in that provision there were substituted "(whether personally or otherwise)",(c) works or worked as a person providing general medical services, general dental services, general ophthalmic services or pharmaceutical services in accordance with arrangements made-(i) by a [Primary Care Trust or] Health Authority under section 29, 35, 38 or 41 of the National Health Service Act 1977, or(ii) by a Health Board under section 19, 25, 26 or 27 of the National Health Service (Scotland) Act 1978, or(d) is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than- (i) under a contract of employment, or (ii) by an educational establishment on a course run by that establishment; and any reference to a worker's contract, to employment or to a worker being "employed" shall be construed accordingly.

(2) For the purposes of this Part "employer" includes-(a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,(b) in relation to a worker falling within paragraph (c) of that subsection, the authority or board referred to in that paragraph, and(c) in relation to a worker falling within paragraph (d) of that subsection, the person providing the work experience or training.

(3) In this section, "educational establishment" includes any university, college, school or other educational establishment.

EXPLANATORY NOTE

This provides an extended meaning to the definition of 'worker' and, as such, the scope of this Act goes beyond much of existing employment law. Under section 230(3) of the ERA, a worker includes an employee and an independent contractor who himself provides services other than in a professional/client or a business/client relationship. In addition to these, this Act protects certain agency workers, homeworkers, NHS doctors, dentists, optometrists and pharmacists, and trainees on vocational or work experience schemes.Tribunals have held that it does not, however, include the president of a union branch Dring v GMB ; a doctor seconded to work unpaid at a charity Sims v MASH; (2002) - nor a volunteer at a charity Smart v Citizens Advice Bureau.

Subs. (1)(a)This covers agency workers, where the agency introduces them to or finds them the post and the terms of employment are substantially determined by the agency or the organisation where he performs the work. In this case, the 'employer' will include the person who substantially determined the terms of engagement (see subs. (2)(a)). It is anticipated that this will normally be the organisation on whose instructions the person performs the work. However, under PIDA a worker may have more than one employer: see the ET decisions in Hayes v Reed Social Care & Bradford MDC (where the agency was the classic employer and Bradford MDC was also an employer for PIDA as it had substantially determined the terms of the engagement) and also Hittinger v St Mary's NHS Trust & Imperial College.

Subs. (1)(b)This covers a homeworker, namely an independent contractor who provides services whether personally or otherwise from their home.

Subs. (1)(c)This ensures that the Act applies across the NHS. Doctors, dentists, optometrists and pharmacists in the NHS are usually independently contracting professionals and hence would not come under the definition of employee or worker in the ERA. Under this provision, for these professionals the Primary Care Trust or Health Authority (or in Scotland, the Health Board) with which they contract is deemed to be their employer for the purposes of this Act (see subs. 2(b)). It should be noted that the extension to Primary Care Trusts - which take over responsibilities of a number of health authorities - was made by way of an amendment in the NHS Reform Bill 2002, schedule 2 para 63.

Subs (1)(d)This provision ensures that trainees on work experience or vocational schemes will be protected against victimisation where they raise concerns within this Act. It does not cover students in education. For trainees covered by this section, the person providing the training is deemed to be the employer for the purposes of this Act (see subs 2(c)).

(1) For the purposes of-(a) this Part,(b) section 47B and sections 48 and 49 so far as relating to that section, and(c) section 103A and the other provisions of Part 10 so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 103A,a person who holds, otherwise than under a contract of employment, the office of constable or an appointment as a police cadet shall be treated as an employee employed by the relevant officer under a contract of employment; and any reference to a worker being "employed" and to his "employer" shall be construed accordingly.

(2) In this section "the relevant officer" means-(a) in relation to a member of a police force or a special constable appointed for a police area, the chief officer of police;(b) in relation to a person appointed as a police member of the NCIS, the Director General of NCIS;(c) in relation to a person appointed as a police member of the NCS, the Director General of NCS;(d) in relation to any other person holding the office of constable or an appointment as police cadet, the person who has the direction and control of the body of constables or cadets in question

EXPLANATORY NOTE

This section extends the protection of PIDA to police officers. It was inserted by section 37 of the Police Reform Act 2002 and is expected to come into force in Spring 2004. The relevant Parliamentary consideration can be found at Hansard (HL) 5 March 2002 cols 215-220 and Parliamentary Debates (HC) Standing Committee A 27 June 2002, cols 425-7. It is expected that the new Independent Police Complaints Commission will be made a prescribed regulator.

The exclusion of police officers from the original Bill had been justified by the fact that police officers had always been excluded from standard employment rights. Nevertheless their exclusion from PIDA was criticised by almost all those consulted in 1997/98, particularly as miscarriages of justice were a type of wrongdoing the Act specifically covered in section 43B(1)(c). The Association of Chief Police Officers had maintained that if civilian police staff were to be protected so should their officer colleagues. As a result of these criticisms, the Government gave "an absolute commitment" in 1998 that police officers would be given equivalent protection and this new section delivers on that promise.

Section 43L ERAOther interpretative provisions

43L. (1) In this Part-"qualifying disclosure" has the meaning given by section 43B;"the relevant failure", in relation to a qualifying disclosure, has the meaning given by section 43B(5).

(2) In determining for the purposes of this Part whether a person makes a disclosure for purposes of personal gain, there shall be disregarded any reward payable by or under any enactment.

(3) Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention.

EXPLANATORY NOTE

These are interpretative provisions.

Subs. (2)Disclosures for personal gain only arise under ss.43G and 43H. The effect of this provision is where a regulator who is not prescribed under s.43F makes a reward, it shall not be a bar to protection. Such rewards are occasionally made by statutory agencies in return for information supplied.

Subs. (3)This makes clear that the worker does not unwittingly lose protection against victimisation where the recipient of the information was already aware of the situation. It avoids any argument that in such a case there could in law be no disclosure.

Section 2 PIDARight not to suffer detriment

2. - After section 47A of the 1996 Act there is inserted-

47B.Protected disclosures

(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.(1A) A worker ("W") has the right not be subjected to any detriment by an act, or any deliberate failure to act, done -(a) by another worker of W's employer in the course of that other worker's employment, or(b) by an agent of W's employer with the employer's authority,on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer.(1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker - (a) from doing that thing, or(b) from doing anything of that description. (1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if - (a) the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and(b) it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B). [Subsections (1A) - (1E) were inserted by the Enterprise and Regulatory Reform Act 2013 and take effect from 25 June 2013]

(2) Except where the worker is an employee who is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where -(a) the worker is an employee, and(b) the detriment in question amounts to dismissal (within the meaning of that Part).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, "worker", "worker's contract", "employment" and "employer" have the extended meaning given by section 43K.

EXPLANATORY NOTE

This section protects employees from action short of dismissal and protects other workers (who cannot be dismissed, as they are not technically employees) from any victimisation, including the termination of their contract. Protection for employees against dismissal and redundancy is provided in ss.5 and 6, below. Note that no qualifying period or upper age limit applies to this protection (see s.7 below).

The section does not confer a right of action against any third party who victimised the worker, such as fellow employees, individual managers or clients of the employer (unless that third party comes within the extended definition of employer in s.43K(2)). However, the failure of the employer to protect the worker against such action by others might itself be a detriment.

Subs. (1)detriment

An employer subjects a worker to a detriment not only if he acts to the worker's detriment (for example, offering less work to a casual worker, Almond v Alphabet Children's Services; disciplining the whistleblower, Kay v Northumberland Healthcare NHS Trust; threatening to destroy the whistleblower, Bhatia v Sterlite Industries; re-advertising of the whistleblower's job, Brown v Welsh Refugee Council; withdrawing the promise of a permanent post, Bhadresa v SRA; or disclosing the whistleblower's identity contrary to assurances, Carroll v Grt. Manchester County Fire Service) but also if he causes him detriment by deliberately failing to act. Examples of the latter have included failing to investigate a concern (see A v B & C and Boughton v National Tyres) and failing to inform the whistleblower of the progress of the investigation (Knight v LB Harrow).

Tribunals have held the following did not on their facts amount to a detriment: moving the whistleblower to an open plan office, Chattenton v Sunderland CC; the continuation of bad relations with a manager, Allison v Sefton MBC; or the demotion and transfer of the manager complained about, Chubb v Care First Partnership.

Detriment, it is submitted, also includes the threat of a detriment. As the Government spokesman (Hansard HL, 5 June 1998, col. 634) said "An employee who has made a disclosure to his employer could be threatened with relocation to a remote branch of a company, for instance, where promotion prospects are poorer. That kind of threat is a detriment and even though the worker can be assured that the employer could not lawfully carry out the threat, the fear of the threat may well amount to detrimental action. Any threat which puts a worker at a disadvantage constitutes in itself detrimental action". See also Mennell v Newell & Wright [1997] IRLR 519 where the Court of Appeal agreed with the EAT (while allowing an appeal on other grounds) that asserting a threatened infringement of a statutory right came within s.104 ERA.

Causation: 'on the ground that'Under this section, it is for the employer to explain the reason for any detrimental action and so there is an evidential presumption on it. The same test on causation exists in discrimination law and its application there was clarified by the House of Lords in Chief Constable of West Yorkshire Police v Khan (2001) ICR 1065. In Aspinall v MSI Mech Forge, the EAT held that as to causation issues under PIDA, tribunals should adopt the same approach, that the disclosure has to be the "real reason, the core reason, the causa causans, the motive for the treatment complained of". As to causation generally, see the notes on section 5.

This issue was considered in Hayes v Reed Social Care & Bradford MDC where the tribunal stated "there may be cases in which an employer has a number of grounds for taking action detrimental to an employee which include the making of a protected disclosure. What matters is whether the ground was significant or substantial. Given that the phrase 'on the ground' in section 47B is identical to the phrases used in the Race Relations Act and the Sex Discrimination Act, we ignore any question of motive." It was also considered in Borley v Suffolk CC, where the tribunal stated that to establish causation under this provision it was not necessary to prove that reprisal was the employer's motive or its intention.

Subs. (2)This provides that an employee who is dismissed cannot claim under this section but must claim under ss.5 and 6 PIDA (ss.103A and 105(6) ERA). However, the single exception to this is where an employee is on a fixed term contract of more than a year and he has agreed in accordance with s.197 ERA to waive any claim for unfair dismissal if his contract is not renewed. In such a case, an employee can bring a claim that his employment contract was not renewed because he had made a protected disclosure.

3. - In section 48 of the 1996 Act (complaints to employment tribunals), after subsection (1) there is inserted-"(1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B."

[The following was inserted by section 19(2) the Enterprise and Regulatory Reform Act 2013 and takes effect from 25 June 2013]In section 48 of that Act (complaints to employment tribunals), in subsection (5) - (a) for "includes, where" substitute "includes - (a) where";(b) at the end insert - "(b) in the case of proceedings against a worker or agent under section 47B(1A), the worker or agent."

EXPLANATORY NOTE

This enables a worker to make a complaint to an employment tribunal that he has been subjected to a detriment in breach of s.2 PIDA, s.47B ERA. Claims of an infringement of this right are not enforceable in any other forum. Under this provision, it is for the employer to show the ground on which he subjected the worker to detriment: s.48(2) ERA.

Under s.48(3) claims should be brought within three months of the act or the deliberate failure, or the last act or failure if the worker was subjected to a series of detriments. Where it was not reasonably practicable to claim within three months, the period may be extended to such extra time as is reasonable to bring the claim. This provision is the same as applies for unfair dismissal and a generally common approach has been taken to extensions, which is that they are not freely given.

Under s.48(4) where the complaint relates to a deliberate failure to act, time runs from the date that the employer decided not to act. In the absence of evidence of this, it is the date the employer did an act inconsistent with the failed act or, in the absence of such evidence, the date by when the employer might reasonably have been expected to have acted. It should be noted that time runs from the date of the detriment, not the date of disclosure - see Miklaszewicz v Stolt Offshore Ltd (Court of Session).

DEFINITIONS"worker" : s.1 PIDA, s.43K(1) ERA

Section 4 PIDALimit on amount of compensation

4 - (1) Section 49 of the 1996 Act (remedies) is amended as follows.

(2) At the beginning of subsection (2) there is inserted "Subject to subsection (6)".

(3) After subsection (5) there is inserted-"(6) Where-(a) the complaint is made under section 48(1A),(b) the detriment to which the worker is subjected is the termination of his worker's contract, and(c) that contract is not a contract of employment,any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 103A".

EXPLANATORY NOTE

The heading is misleading, in that there is no limit on compensation (the heading refers to subsection 3 of this section which is redundant, for the reasons given below).

Where a tribunal has found that a worker was victimised in breach of s.2 (s.47B ERA), it must make a declaration to that effect and may make an award of compensation: s.49(1) ERA. Compensation awards are assessed based on what is "just and equitable in all the circumstances", having regard to the infringement complained of and any loss suffered by the worker as a result of the detriment: s.49(2). These losses specifically include expenses reasonably incurred by the complainant and the loss of any benefit he might otherwise have expected: s.49(3). The worker is under a duty to mitigate his losses (s.49(4)) - which, if his contract is terminated, includes obtaining or seriously seeking another job. Finally the tribunal has to reduce the award by such sum as it considers just and equitable where it finds the worker himself had contributed to or caused the detriment: s.49(5).

Subs. (3)This subsection has no effect as there will be no limit on compensatory awards where an employee is dismissed (see the Note to section 8 below). Had there been such a limit, this subsection would have ensured that a worker who was not an employee could not have received a larger award where his contract was terminated than if he had been an employee who had been dismissed in breach of this Act.

"103A.Protected disclosureAn employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."

EXPLANATORY NOTE

This provision makes the dismissal of an employee because or principally because he made a protected disclosure automatically unfair, see ss.99-103 ERA. The effect is that the tribunal is not to consider whether or not the employer's actions were reasonable.

Causation: If there were a number of reasons for the dismissal, it is still automatically unfair if the protected disclosure was the principal or core reason - see Aspinall v MSI Mech Forge where the EAT adopted the causation approach from discrimination law and said that for PIDA to apply the protected disclosure must be "the real reason, the core reason, the causa causans".

Burden of proof: If the worker has been employed for one year or more, the burden of proof rests with the employer to show the reason, or principal reason, for the dismissal was an admissible reason within s.98(1)(b) or (2) of the ERA. See, for example, Fernandes v Netcom where the ET found that the employer's reasons were a smokescreen; Leonard v Serviceteam where the employer gave no adequate explanation for the dismissal; Lewer v Railtrack where the employer failed to provide evidence for its stated reason; and Pipes v Brideford Lodge where the employer failed to attend the hearing.

Dismissal within first year: Where an employee has been employed for less than one year, however, he needs to establish the jurisdiction of the tribunal to hear the complaint. This means the burden rests with the employee to establish, on a balance of probabilities, that the reason or principle reason for dismissal was because he or she made a protected disclosure (see Smith v. Chairman & Councillors of Hayle Town Council [1978] IRLR 413). In Brothers of Charity Services Merseyside v Eleady-Cole the EAT said that where the tribunal rejects the employer's stated reason for a dismissal within the first year, it should set out clearly its reasons and the facts relied on. Examples from ET decisions include Azmi v Orbis Charitable Trust (where the evidence conflicted with the alleged poor performance); and Scott v Building Management Service (where the employer had responded angrily to the disclosure).

Several reasons: Where there is more than one reason for the dismissal, what matters is what was the real reason (see Aspinall, supra) and this will be a question of fact. Guidance can be found in the approach of the EAT in Hossack v Kettering Borough Council (where the manner in which a protected disclosure had been made was cited as one of several examples of conduct justifying dismissal). See also the ET decisions in Hayes v Reed Social Care & Bradford MDC and Pimlott v Meregrove.

Interesting points on causation :

anonymity: Where a concern had been raised anonymously and there was no evidence that the employer knew of the disclosure, the tribunal was unable to infer that the disclosure had been the cause of the dismissal, Eastelow v Taylor

several whistleblowers: Where no action had been taken against colleagues who had blown the same whistle more vociferously, causation was not established, March v The Holiday Place (redundancy within 12 months).

Termination of a worker's contractWhere the worker was not an employee (or if he was an employee on a fixed term contract and s.197 ERA applies), and his contract was not renewed because he made a protected disclosure his protection is set out under ss.3 and 4, supra.

6. - After subsection (6) of section 105 of the 1996 Act (redundancy) there is inserted-

(6A)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 103A".

EXPLANATORY NOTE

This confers a new right on employees not to be selected for redundancy for making a protected disclosure. Note that no qualifying period or upper age limit applies to this section (see s.7 below).

The effect is that the dismissal is unfair (s.105(1) ERA) if (a) the principal reason for it was redundancy; (b) other employees in a similar position were not dismissed in the same circumstances; and (c) the reason or the principal reason the employee was selected was because he had made a protected disclosure.

Helpful ET decisions include Daniel v Toolmex Polmach (where the restructuring of that part of the business was well in hand before the disclosure); Durrant v Norfolk Sheet Metal and O'Connor v MIND (where the concerns were raised on being told of redundancy); and Saunders v Westminster Dredging (where the redundancy policy was not followed).

Where the worker was not an employee (or he was and he was on a fixed term contract and s.197 ERA applies), and his contract was not renewed because he made a protected disclosure his protection is set out under ss.3 and 4, supra.

Section 7 PIDAExclusion of restrictions on right not to be unfairly dismissed

7 - (1) In subsection (3) of section 108 of the 1996 Act (cases where qualifying period of employment not required), after paragraph (f) there is inserted-

"(ff) section 103A applies"

(2) In subsection (2) of section 109 of the 1996 Act (disapplication of upper age limit), after paragraph (f) there is inserted-

"(ff) section 103A applies".

EXPLANATORY NOTE

This provides that neither the minimum one-year qualifying period nor the upper age limit applies to claims under this Act for unfair dismissal or unfair selection for redundancy.

Subs. (1)The effect is that rights in respect of dismissal for making a protected disclosure arise on the first day of employment, but see notes to section 5 supra as to the different burden of proof that applies in this situation. It should be noted that rights in respect of victimisation short of dismissal (see s.2 supra) also arise on day one.

Subs. (2)The effect is that the rights against unfair dismissal are not lost where the employee makes a protected disclosure after he has reached normal retirement age or, where there is none, the age of sixty-five.

Compensation for unfair dismissal In section 123 of that Act (compensatory award for unfair dismissal), after subsection (6) insert—“(6A)Where—(a)the reason (or principal reason) for the dismissal is that the complainant made a protected disclosure, and(b)it appears to the tribunal that the disclosure was not made in good faith, the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the complainant by no more than 25%.” [This section was inserted by the Enterprise and Regulatory Reform Act 2013 and applies to disclosures made on or after 25 June 2013]

Section 8 PIDACompensation for unfair dismissal

[This section has been repealed]

EXPLANATORY NOTE

Compensation under PIDA is uncapped - the maximum award at January 2003 has been £805,000 (Bhatia v Sterlite Industries). Awards can include not only loss of past earnings, but future losses occasioned by damage to the whistleblower's career (see Fernandes v Netcom), injury to feelings (Bhadresa v SRA and Holden v Connex) and aggravated damages (see A v X, Bhadresa v SRA and Holden v Connex).

It may be of interest to explain the background to this issue and this section (which was repealed by section 44 and Schedule 9 Part 11 of the Employment Relations Act 1999). As the Government and Mr Shepherd were unable to agree on the correct approach to compensation for unfair dismissal at the time the Bill was introduced, a wide regulation-making power was introduced in this section and Public Concern at Work was asked to consult on the options. These were (a) applying the normal regime on unfair dismissal; (b) awarding compensation for losses, without any ceiling; or (c) extending the provisions for special awards (which hitherto applied to health and safety representatives, pension fund trustees and dismissals for union activities) to whistleblowers.

An overwhelming consensus among business, unions and professional interests favoured full compensation for whistleblowers. The Institute of Directors - which alone favoured normal awards - felt the precedent of special awards was "wholly inappropriate," while the Confederation of British Industry expressed reservations about the high minimum and the low maximum awards attached to special awards. As the issue of compensation awards was being considered under all employment law, the Government reserved its position during the passage of this legislation. Early in 1999 it announced that awards under PIDA would be uncapped and repealed this section through the Employment Relations Act.

Section 9 PIDAInterim relief

9 - In sections 128(1)(b) and 129(1) of the 1996 Act (which relate to interim relief) for "or 103" there is substituted ", 103 or 103A".

EXPLANATORY NOTE

This provides that employees (but not other workers) who are dismissed because they made a protected disclosure are able to claim interim relief. This is a potentially significant provision because, if the tribunal finds that the employee is likely to win at the full hearing, it will order that, pro tem, the employee is re-employed or that his employment is deemed to continue and so he will receive his salary. If, after the full hearing, the tribunal finds in favour of the employee, such an interim order (a) is likely to increase the chances that the tribunal find it is practicable for the employer to comply with any re-employment order made at the full hearing and (b) will strengthen the employee's bargaining position in negotiations.

However the practical value of this provision is somewhat limited in the light of the Court of Appeal's decision in Taplin v. C Shippam Ltd. [1978] IRLR 450 on the application of this section. There the court ruled that to meet the section's test of likelihood, there must be more than a reasonable chance of success. As to the application of this test to a PIDA claim, see the ET decisions in Fernandes v Netcom (interim relief) and Llewelyn v Carmarthenshire NHS Trust.

It is submitted that interim relief claims under PIDA are more likely to succeed in cases involving a s.43C disclosure (to an employer), a s.43E disclosure (to a Minister of the Crown) where the threshold for the applicant is fairly low, or a s.43F disclosure (to a prescribed person) where the evidential burden is slightly higher. Where the case involves a wider disclosure under s.43G and the applicant must demonstrate that the disclosure was reasonable in all the circumstances, it will be more difficult for a tribunal to determine that an applicant is likely to be successful at full hearing. See Parkins v Sodexho where the EAT stressed that at interim relief hearings, tribunals should not prejudge issues which were properly for the full hearing where evidence would be heard and tested.

Interim relief is available if the claim is made within 7 days of the dismissal (s.128(2)); and the tribunal shall determine the application as soon as practicable thereafter (s.128(3)); but giving the employer not less than 7 days notice of the hearing (s.128(4)). The tribunal cannot postpone the hearing of an application for interim relief unless it is satisfied there are exceptional circumstances (s.128(5)).

If at the interim relief hearing (s.129(1)), the tribunal considers it "likely" that at full hearing it will find that the reason or the principal reason for the dismissal was because the employee made a protected disclosure, then a series of provisions are triggered. Briefly, these are that the tribunal first explains its powers (s.129(2)) and asks the employer if he will re-employ the employee, pending the full hearing (s.129(3)). If the employer is willing, then an order is made to that effect: s.129(4)-(6). If the employee does not accept re-engagement (that is a different post, though on terms no less favourable: s.129(3)(b)) then the tribunal decides whether that refusal is reasonable. If it is reasonable then the employee's contract is deemed to continue until the full hearing. If the refusal is not reasonable then no order is made pending full hearing: s.129(8). If, however, the employer fails to attend the hearing for interim relief or says he is unwilling to re-employ the employee (s.129(9)), then the tribunal makes an order under s.130 that the employee's contract is deemed to continue until the full hearing.

Section 10Crown employment

10. - In section 191 of the 1996 Act (Crown employment), in subsection (2) after paragraph (a) there is inserted-

"(aa) Part IVA,"

EXPLANATORY NOTE

The effect of this section is to apply this Act to people who are employees of, work for or are in the service of the Crown (s.191 ERA). It does not, however, extend to those in the armed forces (s.192 ERA) or to those involved in national security (s.11, below).

Section 11National security

[This section has been repealed]

EXPLANATORY NOTE

The relevant current provision on national security is section 193 Employment Rights Act (as amended by the Employment Relations Act 1999). This makes clear that the Public Interest Disclosure Act protections do not apply to people who work for the Security Service, Security Intelligence Service and GCHQ. This absolute exclusion means that a worker in one of these organisations will not be protected from victimisation even where he raises a concern internally that a manager accepted a bribe to award a cleaning contract.